20180213 TZCA Tabora

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: JUMA, C.J., MJASIRI, J.A. And LILA, J.A.) CRIMINAL APPEAL NO. 491 OF 2015 KULWA S/0 MOSES................................................................APPELLANT VERSUS THE REPUBLIC ..................................................................... RES PON DENT (Appeal from the decision of the High Court of Tanzania at Tabora) (Rumanyika, J.) dated the 21 st day of September, 2015 in De. Criminal Appeal No. 41 of 2015 JUDGMENT OF THE COURT 12th & 15th February, 2018 JUMA, C.J.: This is a second appeal. The appellant KULWA MOSES was together with others, SHABAN MAZIKU, MBUTA MAKOBELO @ GUWAKA and KASHINDYE KULWA @ BUSABI jointly charged in the District Court of Kahama (Criminal Case Number 288 of 2014) with two counts of armed 1 '\ robbery (c/s 287A of the Penal Code, Cap. 16) and unlawful possession of ammunition. When the charge with two counts was read over, the appellant pleaded guilty to the charge while his erstwhile co-accused denied and pleaded "Not Guilty". Apart from pleading guilty, the appellant went further and accepted as correct, all the facts which the prosecution narrated in support of the two counts. Before convicting the appellant, the trial Resident Magistrate (K.M. Mutembei) restated his findings that: "Facts which 1st accused person is admitted without any qualification do constitute the offence charged with in the event I find him guilty for both counts as charged and therefore convict him forth with on his plea of guilty. ... " After convicting the appellant on his plea of guilty, the learned trial magistrate ordered 'the appellant to serve thirty (30) years in prison. In his first appeal in the High Court at Tabora, the appellant challenged his conviction and the sentence on basis of two grounds, namely, that he was induced by a policeman to be paid Tshs. 5,000,000/= in exchange of the plea of. In the second ground he 2 questioned the evidence of visual identification for an offence which was allegedly committed at night. His complaints and submissions thereon were to no avail because his appeal was dismissed, even though Rumanyika, J. had in the course of his decision, found that the trial magistrate should not have split the offence of armed robbery into two counts of armed robbery and that of unlawful possession of firearms. Still aggrieved with the dismissal of his first appeal, the appellant came to this Court armed with four grounds of appeal. He asserted that in the interests of justice, the circumstance of the case against him, his own plea of guilty should not be sustained. He faults the way his plea was taken in Kiswahili, without taking into account that he could only converse in his mother tongue, Kisukuma. This language barrier prevented him from understanding the essential ingredients of the counts he was facing. He is also aggrieved with the way the two courts below failed to take into account his young age of fourteen (14), which not only required him to be tried in a juvenile court, but he should have been afforded the benefit of lenient of sentence as provided for under section 2 of the Minimum Sentences Act No. 1 of 1972. 3 When this appeal came before us for hearing on 12th February 2018, the appellant appeared in person, fending for himself. He preferred to let the learned State Attorney who appeared for the respondent Republic to submit on his grounds of appeal first. The respondent was represented by Mr. Miraji Kajiru, learned State Attorney. Initially, Mr. Kajiru opposed the appeal on conviction but he conceded that the appellant's plea was in fact not unequivocal when we referred him to a paragraph in the record of appeal where, the learned first appellate Judge faults the way the trial magistrate allowed the appellant to be charged with two counts, while the facts disclosed only one count of armed robbery. In his reply, the appellant urged us to allow his appeal and set him free because all his co-accused who had pleaded "NOT GUILTY" were all freed, while he, who did not commit any offence was convicted. With the learned State Attorney conceding that the appellant's plea of guilty was not unequivocal, the main question is whether the two courts below were correct to conclude that appellant was properly convicted and sentenced on an unequivocal plea of guilty. 4 We are well aware of the requirements of the law under section 360 (1) of the Criminal Procedure Act, Cap. 20 (CPA), to the effect that where an accused person pleads guilty to a charge levelled against him, and having accepted the statement of facts read out to support the charge to be true; that accused person's conviction is regarded in law to be unequivocal and he will not have the right to appeal except against sentence. Section 360 (1) of CPA states: 360.-(1) No appeal shall be allowed in the case of any accused person who has pleaded guilty and has been convicted on such plea by a subordinate court except as to the extent or legality of the sentence. Despite the apparent strictness of section 360 ( 1) of the CPA, there are circumstances which allow appeals against convictions on plea of guilty. For example, where the plea leading up to the conviction was not unequivocal, the conviction and resulting sentence can be set aside. Circumstances where a plea of guilty can be regarded as equivocal are not exhaustive. In KALOS PUNDA VS R., Criminal Appeal No. 153 of 2005 ( unreported) the Court identified some of the criteria which may 5 make a plea to be regarded as equivocal and thus open to be quashed, to allow a fresh trial of an appellant on a plea of not guilty. These criteria include: 1. that even taking into consideration the admitted facts/ the plea was imperfect ambiguous or unfinished and for that reason/ the lower court erred in law in treating it as a plea of guilty; 2. that the appellant pleaded guilty as a result of mistake or misapprehension; 3. that the charge laid at the appellant's door disclosed no offence known to law; and 4. that upon the admitted facts the appellant could not in law have been convicted of the offence charged It seems to us that the purpose of reading the charge and thereafter narrating the statement of facts is designed to highlight to the accused person all the essential ingredients constituting the offence or offences for which he is charged with. This is what was laid down by the East African Court of Appeal in ADAN V. R [1973] E.A. 6 445 and followed up in Tanzania by several decisions of this Court, including KHALID ATHUMANI V. R., CRIMINAL APPEAL NO. 103 OF 2005, which Mr. Kajiru cited to us. In ADAN V. R., the East African Court of Appeal stated: "When a person is charged, the charge and the particulars should be read out to him/ so far as possible in his own language/ but if that is not possible/ then in a language which he can speak and understand. The magistrate should then explain to the accused person all the essential ingredients of the offence charged. If the accused then admits all those essential elements, the magistrate should record what the accused has said, as nearly as possible in his own words/ and then formally enter a plea of guilty. The magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete/ should give the accused an opportunity to dispute or explain the facts or to add any relevant facts. [Emphasis added]. We think, it is confusing to the appellant for a charge sheet containing two counts to be read out to him, and only later on appeal, to find that there was only one count after all. The first appellate 7 Judge was clearly exasperated by the way the learned trial magistrate split the otherwise one offence of armed robbery into two, of armed robbery and unlawful possession of firearms when he said: '~ .. the charge as said, was one of armed robbery c/s 287 (287A) of the Penal Code. It shouldn't, have been split as the trial court did, into more than one count namely stealing and found in unlawful possession of arms. The charge of armed robbery in my view, constitutes two main ingredients; one steals armed while threatening the victim immediately before, during, or in order to retain the property stolen, threatens the victim immediately thereafter. Being armed is in fact an inseparable subset of the charge of armed robbery. The two are in all circumstances of cumulative effects. '' With due respect, on the above finding by the first appellate Judge, the plea of the appellant cannot be regarded as unequivocal, if in the narration of facts to the appellant, the trial magistrate mixed up or confused the ingredients constituting two distinct offences. It seems to us that the appellant cannot be said to have understood that the 8 narration of facts was with respect of only one offence of armed robbery whose ingredient include use or threat to use firearms. Our fear that appellant d_id not understand that he was facing only one offence of armed robbery is confirmed by the Memorandum of Appeal which he filed on 16/02/2015 to initiate his first appeal. In that Memorandum the appellant still refers to both counts of armed robbery and unlawful possession of firearms: "MEMORANDUM OF APPEAL After being aggrieved by the entire decision of the District Court of Kahama which vested by the trial Court Magistrate to me where I was convicted to thirty years in Jail (30) for the offence of Armed Robbery c/s. 287A of the Penal Code and unlawfully in possession of homemade gun, I do appeal against both conviction and sentence as hereunder grounds:" [Emphasis added]. We find that both the charge sheet, and the statement of facts which the prosecution narrated to disclose two distinct counts instead of a single count that was later found by the first appellate Judge; making the plea which the appellant took to be equivocal. 9 . 1 Taking into account the confusion as to whether the charge sheet disclosed two counts or a single count, we leave it to the wisdom and discretion of the DPP to decide whether or not to file a fresh charge. As for now, we allow the appeal, quash the proceedings, judgment and rulings of the District Court and the High Court and we set aside the sentence of thirty (30) years imprisonment. The appellant shall be released forthwith from prison, unless he is being held for any lawful purpose. DATED at TABORA this 13th day of February, 2018. I. H. JUMA CHIEF JUSTICE S. MJASIRI JUSTICE OF APPEAL S. A. LILA JUSTICE OF APPEAL I certify that this is a true copy of the original. A.H. M UMI DEPUTY REGISTRAR COURT OF APPEAL 10